In a filing with the 4th U.S. Circuit Court of Appeals, Perry’s attorneys requested that the court order his name be placed on the ballot, or order that ballots not be printed or mailed before his appeal is considered.

Perry sued last month after failing to submit enough signatures to get on the Mach 6 ballot. Former House Speaker Newt Gingrich, former Pennsylvania Sen. Rick Santorum and former Utah Gov. Jon Huntsman joined Perry’s lawsuit after also failing to qualify.

Only former Massachusetts Gov. Mitt Romney and Texas Rep. Ron Paul qualified for the primary ballot.

Virginia requires candidates to obtain the signatures of 10,000 registered voters, including 400 from each of the state’s 11 congressional districts, to get on the ballot. State law also allows only Virginia residents to circulate petitions.

On Friday, U.S. District Judge John A. Gibney said that if the candidates thought the law was unconstitutional, they should have challenged it when they first began their campaigns in the state rather than waiting until after they failed to make it.

Perry maintained that the requirement that only Virginians could circulate petitions violated his free-speech and free-association rights by limiting the number of people who could carry his message in Virginia. Gibney agreed that that provision is likely unconstitutional, although he did not strike it down because the only question before him was the candidates’ request for a preliminary injunction — not a trial on the merits.

The judge said that had the plaintiffs brought their lawsuit earlier, he or another judge could have issued an order allowing the use of nonresident petition circulators and perhaps the candidates would have gathered enough signatures to qualify.

Gibney disagreed, however, with the plaintiffs’ claim that the 10,000-signature threshold — the highest in the nation — is overly burdensome and serves no compelling state interest.

The judge also said he was concerned that adding more names to the ballot at this late date would disrupt the electoral process.

In Sunday’s filing, attorneys wrote that Perry “timely, and steadfastly, moved to protect his constitutional rights once his claim was ripe.”

“Candidates for the presidency are focused on running for president, not on fighting legal battles to pre-emptively hold state election laws unconstitutional,” they wrote.

A spokesman for the Virginia attorney general’s office did not immediately respond to a request seeking comment. The court on Sunday ordered that the state respond by Monday.

The State Board of Elections has said that adding the names would prevent elections officials from complying with a legal mandate to mail absentee ballots to military and overseas voters at least 45 days before the election — in this case, by Saturday.